Is Praying Mandatory for Women Who Have Extreme Menstrual Pain? (Shafi'i)

Answered by Shaykh Jamir Meah

Question: Assalam alaikum. I have sought civil divorce from my husband. He asked if he could stay in my house for a few days but now refuses to leave. What can I do?

Answer: Wa’alaykum assalam.

Thank you for reaching out to us. May Allah grant you every ease and a way out of your hardship.

It can be difficult to balance Islamic law and secular law when trying to resolve marital issues. These cases are often complex and require further details of the case to provide complete answers. However, we can discuss the main issues and the way forward insha’Allah.

Given the details presented, it seems that there are three issues here: the civil marriage, divorce, and the issue of the apartment and money.

Marriage and Divorce

You mention that you had a civil marriage. Civil marriages do not necessarily mean they are not valid in Islam, as long as the proper conditions of Islamic law are met, namely, that a clear offer and acceptance was made between your guardian and your husband, and the presence of two valid witnesses. [Tuhfa al Muhtaj].

If your guardian was not present, and you married yourself to your husband, there is some scope for the validity of the marriage according to the Hanafi school.

However, if the civil marriage did not fulfil the shariah criteria, then your marriage would not have been valid in the first place. Therefore, I would strongly advise that you consult a local scholar and go over the details.

Divorce

You also mentioned that you went to a lawyer to file for divorce. Again legal divorces may also fulfil the Islamic criteria for divorce if conditions are met, but if these conditions are not present, then the divorce will not take place.

If you merely filed for divorce without your husband being present, or without him agreeing or signing any papers, then the divorce would not have taken place on this occasion.

If he did sign the papers, then the summary of the conditions for divorce to be valid are, a) he understood the contents of the papers and had no objection to it, and, b) He intended by his signature confirmation of divorce (in the Shafi’i school, though this is not a condition in the Hanafi school).

In regards your husband telling your neighbour that you are both divorced, the words you mentioned, ‘we are divorced’ are considered implicit words that require the intention of divorce between himself and you to made. If he did not intend that you are both divorced by these words, then divorce will not be effected. (please refer to this answer for further explanation and reference on this point)

Whatever the case, there are three conditions to the scenario concerning the neighbour:

1. It must be confirmed what your husband actually said, as it maybe that he was referring to the divorce you filed for previously, or as above, he said ‘we are divorced’ but did not make the intention.

2. The neighbour must have been in his presence when they heard him say it, as opposed to merely hearing him say it without seeing him, such as behind a wall.

3. That two or more upright adults heard him say the words (in his presence), otherwise, in a usual court of law, it will be the neighbours word against his.

[Tuhfa al Muhtaj, ‘Iyanat al Talibin]

If, he tells you personally that he said it to the neighbour and meant by it that you are both divorced from each other, or that he said some other wording which was an explicit statement of divorce, even without intention, then you may consider it as a divorce.

A further line of enquiry worth looking into is the fact that he has not paid you or your children the support due to you. Since he is stepped in debt, it seems as though he will not be paying you any maintenance in the near future at least. These alone can be grounds for divorce.

With all the above, please do consult a local qualified scholar or committee, to discuss and confirm your options.

Apartment and Money

It is important that alongside religious counsel you get expert legal advice. Your husband has no right to stay in an apartment that belongs to you. He’s threats of going to the courts and claiming you are bringing up the children as a religious fanatic is blackmail, and most likely a bluff in order to stay at your house.

However, for your own safety, get legal advice on how to get him out of the house. You have every right to tell him to leave and at this present point, you do not owe him anything as a wife.

Even if he does go to the authorities, the fact that he has stolen money out of your account without permission (which is punishable in Islamic law [al Yaqout al Nafis]), has not provided financial support to you and the children, he has rising credit card debts, and that he won’t leave the house that you own, then these are all things that the authorities will take into account and will frown upon.

It is highly likely that he won’t have a case against you. However, again, please seek professional advice as this is not a substitute for it.

I pray the above is of some help. May Allah resolve the situation for you and the children swiftly and grant you every good.

Warmest salams

[Shaykh] Jamir Meah

Shaykh Jamir Meah grew up in Hampstead, London. In 2007, he traveled to Tarim, Yemen, where he spent nine years studying the Islamic sciences on a one-to-one basis under the foremost scholars of the Ribaat, Tarim, with a main specialization and focus on Shafi’i fiqh. In early 2016, he moved to Amman, Jordan, where he continues advanced studies in a range of Islamic sciences, as well as teaching. Jamir is a qualified homeopath.

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